Southern Africa - Interim Economic Partnership Agreement

On 4 June 2009 the State Representatives of Botswana, Lesotho, Mozambique and Swaziland (BLMS) signed an Interim Economic Partnership Agreement (IEPA) with the Member States of the European Union after years of negotiations. The Agreement provides in article 105 that signature and ratification or approval are required to express the Party’s consent to be bound. The terms signature and ratification bear specific legal meaning.

Signature is one of the first steps in the process of becoming a party to a treaty. The IEPA provides in art 105 that a signatory State will become a party to the agreement through ratification or approval. In addition article 18(a) of the Vienna Convention on the Law of Treaties 1969 determine that the signature of an agreement confers an obligation on the contracting parties to refrain from acts which would defeat the object and purpose of the agreement in the period prior to its entry into force. Once a State signs an agreement it is barred from taking action which may undermine its entry into force.

The ratification or approval of an agreement represents an international act whereby a State establishes on the international plane its consent to be bound by a treaty. In this instance, the parties are required to deposit an instrument of ratification or approval to the Secretary General of the Council of the European Union. This institution will function as depositary of the Agreement and shall be responsible for the proper execution of the provisions of the treaty. The Agreement shall enter into force one month after the depositary receives the last instrument of ratification or approval. This will mark the moment on which the treaty becomes legally binding and enforceable on the State parties. In the case of the BLNS countries this will only happen once the final EPA is in force. These States agreed to continue negotiations to extend the scope of the agreement beyond trade in goods. Article 67 of the IEPA provides that the second stage of negotiations will include trade in services, investment, competition and government procurement.

Notwithstanding ongoing negotiations article 105 of the IEPA determines that pending its entry into force the States shall provisionally apply the provisions of the Agreement. The provisional application of an agreement entails giving effect to its provisions notwithstanding the fact that constitutional or internal rules and procedures on ratification or approval have not been concluded.

Additionally provisional application will be effected 10 days after the last notification of provisional application is made to the depositary. However nothing prevents a State from unilaterally applying the Agreement before provisional application.

The case of Namibia is more complicated. Namibia decided not to sign the IEPA due to the inability of the negotiating partners to address the concerns it had raised upon initialing the IEPA text. If Namibia should decide not to join the second stage of negotiations it would have to start the process of ratification.

In addition, article 19(1) of the IEPA determines that the agreement establishes a free trade agreement between the Parties in conformity with article XXIV of the General Agreement on Tariffs and Trade. Thus the agreement must respect and abide by the principles of the World Trade Organisation (WTO). In this regard, paragraph 1(a) of the Transparency Mechanism for Regional Trade Agreements provides:

(a) Members parties to a newly signed RTA shall convey to the WTO, in so far as and when it is publicly available, information on the RTA, including its official name, scope and date of signature, any foreseen timetable for its entry into force or provisional application, relevant contact points and/or website addresses, and any other relevant unrestricted information.
Therefore the IEPA must be notified to and considered by the WTO Committee on Regional Trade Agreements. The Transparency Mechanism explicitly requires notification before the provisional application of an agreement. This provision is particularly important considering the agreement between the parties to apply the provisions of the IEPA pending its entry into force. The Transparency Mechanism also makes provision for the notification of subsequent changes to a notified agreement.

Moreover, each individual party will ultimately (after the conclusion of the full EPA) have to seek domestic approval of the agreement in accordance with its own constitutional provisions. The procedure for transplanting treaty commitments into the domestic legal regime might vary considerably among the Parties depending on their constitutional orders. It may involve the enactment of national legislation to enable the domestic implementation of the agreement. Once the agreement has entered into force the real challenge to State Parties will be to ensure that treaty obligations are continuously and effectively met.

JB Cronjé, a Tralac Researcher, comments on the signing of the Interim Economic Partnership Agreement.

http://www.tralac.org/cgi-bin/giga.cgi?cmd=cause_dir_news_item&news_id=68787&cause_id=1694

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